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We’re embarking on a series of discussions revolving around the Employment Act.

General introduction 

The Act was passed on 22nd October 2007 and it came into force on 2nd June 2008.

According to the preamble, it was passed in order to: –

  1. Declare & define the fundamental rights of employees;
  2. Provide basic conditions of employment of employees;
  3. Regulate employment of children; and
  4. Provide for related matters.

The Act repealed the Employment Act, Chapter 226 which came into force on 3rd May 1976.

Nature & Importance

It’s the most important employment Act after the Constitution primarily because it defines the basic minimum terms and conditions of employment. An employer is at liberty to give and do more but giving and doing less will land an employer in trouble, sooner or later.

It basically sets the benchmark for what is acceptable in regards to terms and conditions of employment and conduct of the parties in the employment relationship.

Non-discrimination (Section 5)

It’s an offence for any employer to discriminate against an employee or prospective employee or to harass an employee or prospective employee on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status.  

This prohibition applies to recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment. 

 It’s however not discrimination to: –

1. Take affirmative action measures consistent with the promotion of equality or the elimination of discrimination in the workplace; or

2. Distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

Equal pay for equal value

It’s a requirement for an employer to pay his employees equal remuneration for work of equal value, simply put, if we do the same job, we should get the same pay, all relevant factors remaining constant.

Next post shall be on…the Employment Contract

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for over 10 years. She is a repository junkie and a lover of editing.

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Comments

  1. Herbert Mali Sile says:

    Im an aircraft technician by profession.I was terminated from work by my boss,reason he called me on a Sunday afternoon demanding me to report to work…i told him i was in Church and wldnt make it at the time,though i later went and did the work late evening,he sucked me on Monday morning.Please i kindly request for any legal advice and assistance since he have not paid me my dues.

    1. Anne Babu says:

      Dear Herbert, if you need the services of a lawyer, you may send an email using the form provided in the contacts page.

  2. Judy Kiptum says:

    Very good learning here

  3. Judy says:

    Thank you Anne for this. I have a query on behalf of one of our staff. There has been incidences of theft within the office. several staff have lost items.

    Office meeting called and management says they are looking into the matter if theft within the office. I think the HR suspects my colleague, call him Ms. X. HR However does not have evidence that Ms. has been involved in theft.

    One day in the evening after work, Ms. X is frisked at the gate when leaving the office. No one else gets checked by the guards, but Ms. X.

    Can this be grounds for Discrimination claim?

    1. Anne Babu says:

      Such treatment is discriminatory, unfair and defamatory. A complaint should be made using the company’s grievance procedures.

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